Helen D Kirk v. Michael J Astrue, No. 5:2006cv01432 - Document 23 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. Accordingly, the Commissioner's decision is REVERSED, and this case is remanded to the Comissioner for the payment of benefits to plaintiff. Judgment shall be entered in favor of plaintiff and this action shall be dismissed with prejudice. LET JDUGMENT BE ENTERED ACCORDINGLY. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 HELEN D. KIRK, ) ) Plaintiff, ) ) v. ) ) ) MICHAEL J. ASTRUE1, Commissioner of the ) Social Security Administration, ) ) Defendant. ) __________________________________ ) NO. EDCV 06-01432-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint in January 11, 2007, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s applications for a period of disability ( POD ), disability 21 insurance benefits ( DIB ), and supplemental security income ( SSI ). 22 On February 9, 2007, the parties consented to proceed before the 23 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 24 636(c). The parties filed a Joint Stipulation on September 18, 2007, in 25 which: plaintiff seeks an order reversing the Commissioner s decision 26 27 28 1 Michael J. Astrue became the Commissioner of the Social Security Administration on February 12, 2007, and is substituted in place of former Commissioner Joanne B. Barnhart as the Defendant in this action. (See Fed. R. Civ. P. 25(d)(1); Section 205(g) of the Social Security Act, last sentence, 42 U.S.C. § 405(g).) 1 and awarding benefits or, in the alternative, remanding the matter for 2 further 3 affirming the Commissioner s decision. The Court has taken the parties 4 Joint Stipulation under submission without oral argument. administrative proceedings; and defendant seeks an order 5 6 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 7 8 Plaintiff filed applications for a POD, DIB, and SSI on August 3, 9 2001, alleging an inability to work since August 15, 2000, due to a 10 combination of exertional and non-exertional impairments. Specifically, 11 plaintiff s alleged impairments consist of: 12 plate in her neck; herniated discs in her low back; shoulder problems; 13 carpal tunnel in both wrists; arthritis in both hips, right knee, arms, 14 and shoulders; difficulty with balance; visually impaired; difficulty 15 concentrating; 16 (Administrative Record ( A.R. ) 112-15, 457-59). 17 work experience as a cashier, grinding machine operator, fast foods 18 worker, stock clerk, and sewing machine operator. and forgetfulness. two ruptured discs and a (A.R. 103, 134, 371-72.) She has past relevant (A.R. 147.) 19 20 The Commissioner denied plaintiff s claims initially and upon 21 reconsideration. 22 plaintiff, who was represented by counsel, testified at a hearing before 23 Administrative Law Judge Helen Hesse ( ALJ ). 24 12, 2004, the ALJ issued an unfavorable decision, but found that 25 plaintiff 26 musculoligamentous sprain and strain; cervical disc disease status post 27 discectomies and fusions at C5-6 and C6-7 with bone graft and implant of 28 cervical plate; status post bilateral carpal tunnel releases; status has the (A.R. 92-97, following 103-06.) severe 2 On February (A.R. 40-91.) impairments: 10, 2004, On April lumbosacral spine 1 post right anterior acromioplasty; and history of alcohol abuse, in 2 remission, 3 specified. 4 request for review of that decision, and on June 5, 2004, the Appeals 5 Council denied review of the ALJ s decision.2 nicotine abuse, (A.R. 16-27.) and depressive disorder, not otherwise On May 12, 2004, plaintiff timely filed a (A.R. 4-7.) 6 7 On August 3, 2004, plaintiff filed a complaint in this Court in 8 Case No. EDCV 04-00948-MAN. 9 ALJ s decision and On March 30, 2006, this Court reversed the remanded the case for further administrative 10 proceedings (the 2006 Order ).3 11 Appeals Council remanded the case to the ALJ for compliance with the 12 2006 Order.4 (A.R. 507-26.) On June 7, 2006, the (A.R. 527-28.) 13 14 15 2 16 On June 8, 2004, plaintiff filed subsequent applications for DIB and SSI, which resulted in a finding of disability as of April 13, 2004. (Joint Stipulation ( Joint Stip. ) at 2.) 17 3 20 The 2006 Order found a remand warranted for two reasons: first, the ALJ failed to develop the record adequately regarding plaintiff s limitations because, inter alia, the ALJ failed to consider properly the opinion of plaintiff s treating physician, Patricia Christie, M.D.; and second, the ALJ improperly rejected the side effects of plaintiff s medications. (A.R. 511-25.) 21 4 18 19 In effectuating this Court s 2006 Order, the Appeals Council stated: 22 23 24 25 26 27 28 Upon remand, the Administrative Law Judge will further evaluate the treating source opinions pursuant to the provisions of 20 C.F.R. 404.1527 and 416.927 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the treating sources to provide additional evidence and/or further clarification of the opinions and medical source statements about what the claimant can still do despite the impairments (20 C.F.R. 404.1512 and 416.912). The Administrative Law Judge may enlist the aid and cooperation of the claimant s representative in developing evidence from the claimant s treating sources. (A.R. 528.) 3 1 On August 15, 2006, plaintiff, who was represented by counsel, 2 testified at a hearing before the same ALJ. (A.R. 693-710.) On October 3 24, 2006, the ALJ again denied plaintiff s claims, the decision now at 4 issue in this action. (A.R. 714-21.) 5 6 SUMMARY OF ADMINISTRATIVE DECISION 7 8 In her decision, the ALJ rejected the opinion of plaintiff s 9 treating physician, Dr. Christie, because it was unsupported by any 10 actual objective medical findings. 11 stated that Dr. Christie s treatment notes do not mention any radicular 12 symptoms, and [a]bsent actual objective findings, the undersigned must 13 reject this assessment. (A.R. 717.) Specifically, the ALJ (Id.) 14 15 Additionally, the ALJ concluded that [t]here is no credible 16 evidence of regular usage of strong medication to alleviate pain that 17 would significantly impair [plaintiff s] ability to do basic work 18 activities. 19 significant side effects. There was no evidence in the medical record of any (A.R. 718.) 20 21 Based upon the ALJ s residual functional capacity assessment, and 22 vocational expert testimony, the ALJ found that plaintiff was unable to 23 perform her past relevant work. 24 that plaintiff could perform the following jobs: 25 and ride operator. (Id.) Accordingly, the ALJ concluded that plaintiff 26 was not disabled within the meaning of the Social Security Act during 27 the time period at issue. (A.R. 720.) (Id.) 28 4 However, the ALJ found usher/lobby attendant STANDARD OF REVIEW 1 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence in the record as a whole. 6 F.3d 625, 630 (9th Cir. 2007). 7 evidence as a reasonable mind might accept as adequate to support a 8 conclusion. 9 a mere scintilla but not necessarily a preponderance. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. 10 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)(citation omitted). While 11 inferences from the record can constitute substantial evidence, only 12 those reasonably drawn from the record will suffice. 13 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). Widmark v. 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner s] conclusion. 19 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities. 23 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision and may not 5 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner s decision if it is based on harmless error, which 4 exists only when it is clear from the record that an ALJ's error was 5 inconsequential to the ultimate nondisability determination. Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 8 F.3d at 679. The Court will not reverse 9 DISCUSSION 10 11 Plaintiff alleges that the ALJ failed to comply with the Court s 12 13 2006 Order in two respects. First, plaintiff contends that the ALJ 14 again failed to consider properly the side effects of plaintiff s 15 medications. 16 consider adequately the opinion of plaintiff s treating physician, Dr. 17 Christie, and to develop the record properly. 18 below, the Court agrees and concludes there is no reason to remand this 19 case again for further administrative proceedings.5 Second, plaintiff contends that the ALJ again failed to For the reasons detailed 20 21 I. The ALJ Wholly Disregarded The Court s Order To Consider Properly The Side Effects Of Plaintiff s Medications On Her Ability To Work. 22 23 When an ALJ evaluates a claimant s limitations, he must consider 24 25 26 27 28 5 Plaintiff alleges a third issue in the Joint Stipulation: whether the ALJ properly considered the opinion of S.B. Pordazi, M.D. In view of the Court s conclusion that an award of benefits is warranted based on the two issues addressed herein, the Court need not, and does not, address the third issue raised by plaintiff. 6 1 evidence regarding the side effects of medications. 2 Ruling 96-7p indicates that the type, dosage, effectiveness, and side 3 effects of any medication the individual takes or has taken to alleviate 4 pain 5 evaluation. See also 20 C.F.R. § 404.1529(c)(3)(iv). The Ninth Circuit 6 has observed that an ALJ must consider all factors that might have a 7 significant impact on an individual s ability to work. 8 Shalala, 9 F.3d 813, 817 (9th Cir. 1993)(citation omitted). 9 factors may include side effects of medications as well as subjective 10 or other symptoms evidence of pain. should be considered in Social Security the disability Erickson v. Such Id. at 818. 11 12 In its last remand Order, the Court determined that the ALJ 13 improperly rejected the side effects of plaintiff s medications. The 14 case was remanded to allow the ALJ the opportunity to correct this 15 error.6 16 express consideration of the side effects of plaintiff s medications 17 and/or their impact on plaintiff s ability to work. However, the ALJ s latest decision is totally devoid of any 18 19 In her decision, the ALJ simply states [t]here is no credible 20 evidence of regular usage of strong medication to alleviate pain that 21 would significantly impair [plaintiff s] ability to do basic work 22 activities. 23 significant side effects. 24 legally insufficient as it relates to the evaluation of plaintiff s 25 disability claim, but it also borders on a mischaracterization of the There was no evidence in the medical record of any (A.R. 718.) Not only is this assertion 26 6 27 28 Specifically, this Court found that the ALJ s finding that Plaintiff has no side effects from her medications that would significantly impair her ability to do basic work activities is in error. (A.R. 525.) 7 1 record. Factually, the record is replete with evidence of plaintiff s 2 regular usage of strong pain medication, which could produce the side 3 effects about which plaintiff complained, and the ALJ should have 4 discussed this evidence. 5 6 For example, in her Reconsideration Disability Report, plaintiff 7 reports taking the following medications: Flexeril, Tylenol 3, Relafen, 8 and Neurontin; and reports the following symptoms and/or side effects: 9 joint pain and swelling, vision impaired, difficulty concentrating, and 10 forgetfulness. (A.R. 155-57.) At the 2004 hearing, plaintiff testified 11 that she feels very fatigued, and she can t focus. 12 Dr. 13 consistently has been taking Vicodin, Neurontin, and Tylenol III since 14 at least August 2002, when Dr. Christie began treating her. 15 381, 384, 385, 399, 404, 413.) 16 complaints of medication side effects in her June 12, 2003 Medical 17 Evaluation Form, in which Dr. Christie notes that Pain causes severe 18 depression, medications cause drowsiness and confusion. 7 Christie s treatment records clearly show (A.R. 51, 54.) that plaintiff (A.R. 375, Dr. Christie affirms plaintiff s (A.R. 373.) 19 20 21 22 23 24 25 26 27 28 7 Consistent use of narcotic medication could affect plaintiff's ability to function in the workplace and could produce the symptoms about which plaintiff complained, namely fatigue and inability to concentrate. The manufacturer of Vicodin warns that: "Hydrocodone [Vidodin ES], like all narcotics, may impair the mental and/or physical abilities required for the performance of potentially hazardous tasks such as driving a car or operating machinery; patients should be cautioned accordingly." PHYSICIAN'S DESK REFERENCE, p. 1487 (53rd ed. 1999). In addition, the manufacturer of Neurontin notes that the most commonly observed adverse effects of this medication are dizziness, fatigue, and abnormal vision. (Id. at 2302-03.) The manufacturer of Relafen states that adverse reactions include: diarrhea, abdominal pain, dizziness, drowsiness, and fatigue. (Id. at 3087.) Finally, the manufacturer of Tylenol with Codeine (Tylenol III) warns that this drug contains controlled substances, tolerance can develop to it, and adverse reactions to the drug may be experienced, such as "lightheadedness, dizziness, sedation, shortness of breath, nausea and vomiting." (Id. at 8 1 Despite the fact that there is substantial evidence in the record 2 documenting plaintiff s severe and continuing medication side effects, 3 the ALJ persists in failing to acknowledge them, and to consider 4 expressly their impact on plaintiff s ability to engage in full-time 5 work. The ALJ was required to consider these side effects in evaluating 6 plaintiff s disability claim, and her failure to do so, once again, 7 constitutes error. 8 9 10 II. The ALJ Failed To Develop The Record Adequately And Failed To Evaluate Dr. Christie s Opinion Properly. 11 12 The ALJ has a special duty to fully and fairly develop the 13 record. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). An 14 ALJ s duty to develop the record further is triggered . . . when the 15 record is inadequate to allow for proper evaluation of the evidence. 16 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); see Thomas v. 17 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(requirement in 20 C.F.R. §§ 18 404.1512(e) and 416.912(e) that the Commissioner re-contact treating 19 sources is triggered where the information from the treating sources is 20 inadequate to make a determination regarding disability). 21 22 A treating physician's conclusions "must be given substantial 23 weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 24 treating or examining doctor s opinion is contradicted by another 25 doctor s opinion, an ALJ may only reject it by providing specific and 26 legitimate reasons that are supported by substantial evidence. Ryan v. 27 28 2252-53.) 9 If a 1 Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citations 2 omitted). 3 4 In her first unfavorable decision, the ALJ rejected Dr. Christie s 5 opinion regarding plaintiff s residual functional capacity, because, 6 inter alia, Dr. Christie did not provide a comprehensive rational[e] to 7 support her decision. 8 8 concluded that the ALJ s rejection of Dr. Christie s opinion was not 9 based on substantial evidence and offered the ALJ an opportunity to 10 obtain clarification from Dr. Christie regarding the reasons for her 11 opinion. Specifically, the Court ruled that as it appears that the ALJ 12 primarily rejected Dr. Christie s opinion due to a lack of understanding 13 regarding the bases for her opinions, it is appropriate here to remand 14 the case for the ALJ to develop the record more fully. (A.R. 22.) In its 2006 Order, the Court (A.R. 519.) 15 16 In the most recent unfavorable decision, at issue here, plaintiff 17 contends that the ALJ substantially failed to comply with the Court s 18 2006 Order. 19 only did the ALJ fail to develop the record adequately, but also she 20 failed, once again, to set forth the requisite specific and legitimate (Joint Stip. at 4-7, 12-14, 16.) Plaintiff argues that not 21 8 22 23 24 25 26 27 28 Dr. Christie opined that plaintiff: would not be able to work at least six hours on a sustained daily basis even if provided a sit only, stand only, or alternating sit and stand option; would need three to five hours of rest throughout an eight-hour day; should do no lifting; cannot use her hands and arms repetitively for grasping, pulling, pushing, or fine manipulation for eight hours on a sustained daily basis; cannot climb or reach on a repetitive sustained daily basis; should not work in certain environments (those with unprotected heights, dust, fumes, and gases; moving machinery; marked changes in temperature or humidity; or automotive equipment that she must drive); and would not be able to maintain adequate attendance on a sustained daily basis at any job following her alleged onset date. (A.R. 373-74.) Dr. Christie diagnosed plaintiff with lower back pain with radiculopathy, neck pain, depression, and anxiety. (Id.) 10 1 reasons, supported by substantial evidence, for rejecting Dr. Christie s 2 opinion. (Id.) For the reasons set forth below, the Court agrees. 3 4 In rejecting Dr. Christie s opinion, the ALJ states that she: 5 6 rejects [Dr. Christie s] assessment as unsupported by any 7 actual objective medical findings. 8 at exhibit 14F/4-14, 18F and 21F note continued complaints of 9 pain, there is little documented objective findings. While the treatment notes The 10 notes do not mention any radicular symptoms. 11 motor or sensory deficits noted. 12 pain and subjective range of motion deficits noted. 13 actual objective findings, the undersigned must reject this 14 assessment. There were no There was only subjective Absent 15 16 (A.R. 717.) 17 18 Rather than simply re-contacting Dr. Christie for clarification of 19 her opinion (which would not have required an extraordinary effort), the 20 ALJ instead chose to rely on the testimony of a non-examining medical 21 expert, Sami Nafoosi, M.D. 22 new evidence in rendering her opinion at the 2006 hearing. 23 fundamental problem with the ALJ s reliance on Dr. Nafoosi s opinion is 24 clear: 25 developed record upon which the ALJ improperly relied in her last 26 decision that was reversed and remanded by this Court. Dr. Nafoosi, however, did not rely on any As such, the Dr. Nafoosi s testimony was based on the same inadequately 27 28 More importantly, the ALJ s mere solicitation of testimony from a 11 1 non-examining medical expert was not calculated to get to the core 2 issue, i.e. whether any objective medical evidence of radiculopathy 3 exists to support Dr. Christie s opinion. 4 contacted Dr. Christie for clarification of her opinion; her reliance 5 instead on Dr. Nafoosi s opinion, which the Court cannot be certain is 6 based upon substantial evidence, falls short of compliance with the 7 Court s 2006 Order. The ALJ should have re- 8 9 Notwithstanding the ALJ s errors, upon further review of the 10 present record, the Court has determined that substantial objective 11 evidence of radiculopathy indeed does exist. 12 plaintiff underwent a spine consultation and evaluation in which one of 13 her treating physicians, Cyrus Ghavam, M.D., reported that plaintiff s 14 cervical spine MRI shows diffuse disc protrusions at the C5-6 and C6-7 15 level which result in some neural foraminal stenosis and she has a 16 right cervical radiculopathy which clinically seems to be primarily 17 related to the C6 level. 18 well. On January 4, 2000, She has definite abnormalities at C6-7 as (A.R. 202, Exhibit 3F/18.)9 19 20 21 9 Critically, at the hearing, no testimony was adduced regarding this exhibit, as neither plaintiff s counsel nor Dr. Nafoosi could seem to locate it in the record. The following colloquy took place: 22 Q: Could you take a look, doctor, at 3F-13. 23 A: 3F-13. 24 Q: There s references to radiculopathy. 25 A: January. Oh, yeah, she did. indication for surgery. This is -- that was the 26 Q: Okay. 27 28 A: That is not in 3F-13. see that? 3F-10. . . . It was -- let me see. 12 Where did I 1 Therefore, although the ALJ substantially failed to comply with the 2 Court s directive to develop the record further, the Court is satisfied 3 that there is objective medical evidence of radiculopathy to support Dr. 4 Christie s opinion. Accordingly, the ALJ s primary reason for rejecting 5 Dr. Christie s opinion -- that the record lacked actual objective 6 findings of radiculopathy -- does not pass muster and constitutes 7 reversible error. 8 9 III. Remand And Payment Of Benefits Is Appropriate. 10 11 As indicated above, the Court finds that the ALJ s decision is in 12 error for the reasons set forth above. For the reasons set forth below, 13 the Court concludes that there is no reason to remand this case again 14 for further administrative proceedings. 15 16 In the Ninth Circuit, courts have the discretion to credit as 17 true both the opinions of treating physicians and the testimony of 18 claimants when the ALJ has failed to provide legally sufficient reasons 19 for rejecting the same. 20 v. McCarthy, 379 F.3d 587, 594 (9th Cir. 2004); Connett, 340 F.3d at 21 876; Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). See, e.g., Widmark, 454 F.3d at 1069; Benecke In addition, 22 Q: Also, at 3F-14 there was a lumbar MRI that showed -23 A: 3F-14. 24 25 26 27 28 Q: -- some pretty significant findings in the Impressions section. A: 3F-14. No, this is cervical. Let me see, might be close by. 3F-4, you mean? Maybe you mean 3F-4. Yeah, 3F-4 is the MRI of the lumbar spine. (A.R. 703-04.) 13 1 the decision whether to remand for further proceedings or order an 2 immediate award of benefits is within the district court s discretion. 3 Harman, at 1175-78. 4 record is fully developed and a remand for further administrative 5 proceedings would serve no purpose, the Court should remand for an award 6 and payment of benefits. 7 80 F.3d at 1292. As the Ninth Circuit has repeatedly held, when the See, e.g., Benecke, 379 F.3d at 593; Smolen, That principle governs here. 8 9 This case was remanded in 2006, based on errors by the ALJ in her 10 consideration of the side effects of plaintiff s medications and the 11 opinion of plaintiff s treating physician. 12 repeated these same errors on remand. 13 emphasized that [a]llowing the Commissioner to decide the issue again 14 would create an unfair heads we win; tails, let s play again system of 15 disability benefits adjudication, and unfairly delay much needed 16 income for claimants who are unable to work and are entitled to 17 benefits. 18 882, 887 (9th Cir. 2004), after finding that reversal was justified due 19 to the ALJ s commission of clear error in rejecting the claimant s pain 20 testimony, the Ninth Circuit concluded that a remand for an award of 21 benefits, rather than for further proceedings on the credibility issue, 22 was appropriate, reasoning: The Commissioner, having lost this appeal, 23 should not have another opportunity to show that [plaintiff] is not 24 credible 25 opportunity 26 credibility. 27 Servs., 28 claimant s benefits claim had been adjudicated by the Commissioner twice 379 F.3d at 595. any 10 more for than remand As discussed above, the ALJ In Benecke, the Ninth Circuit Moreover, in Moisa v. Barnhart, 367 F.3d [plaintiff], had and proceedings further he lost, should to have establish an his See also Sisco v. United States Dep t of Health and Human F.3d 739, 746 (10th Cir. 14 1993)(after noting that the 1 at all levels over a four-year period and finding that substantial 2 evidence did not support the finding that the claimant was not disabled, 3 reversing 4 Secretary is not entitled to adjudicate a case ad infinitum until it 5 correctly applies the proper legal standard and gathers evidence to 6 support its conclusion. (citation omitted)). and remanding for an award of benefits, opining: The 7 8 As discussed above, Dr. Christie opined, inter alia, that plaintiff 9 would not be able to work at least six hours on a sustained daily basis 10 even if provided a sit only, stand only, or alternating sit and stand 11 option, and would need three to five hours of rest throughout an eight- 12 hour day. 13 the Court believes is appropriate under the circumstances, the record 14 shows that plaintiff is disabled. 15 determined to be disabled as of April 13, 2004, and has been awarded 16 Social Security benefits since that date. 17 testified at the August 2006 hearing that, if plaintiff is unable to 18 work an eight-hour day, forty-hour work week, or would miss more than 19 two days of work per month, then there would be No jobs that 20 plaintiff could perform. (A.R. 373-74.) If such evidence is credited as true, which As previously noted, plaintiff was The vocational expert (A.R. 708.) 21 22 In this case, remand for an award of benefits, rather than for 23 additional administrative proceedings, is appropriate. 24 finds that plaintiff was disabled throughout the relevant period, and 25 she 26 consistent with the Commissioner s regulations for the timing of the 27 payment of DIB and SSI. is entitled to receive benefits 28 15 from her Thus, the Court claimed onset date CONCLUSION 1 2 3 Accordingly, for the reasons stated above, the Commissioner s 4 decision is REVERSED, and this case is remanded to the Commissioner for 5 the payment of benefits to plaintiff. 6 favor of plaintiff and this action shall be dismissed with prejudice. Judgment shall be entered in 7 8 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 9 copies of this Memorandum Opinion and Order and the Judgment on counsel 10 for plaintiff and for defendant. 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 15 16 DATED: November 19, 2008 /s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 16

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